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March 16, 2013

"Sentencing Policy Adjudication and Empiricism" with a focus on federal child porn sentencing

The title of this post is drawn from the basic title of this notable new and timely article by Melissa Hamilton now on SSRN and just titled "Sentencing Policy Adjudication and Empiricism."  Here is the abstract, which highlights why this piece is especially a must-read for anyone working on federal child porn cases:

Federal sentencing is in disarray with a raging debate pitting Congress, the United States Sentencing Commission, and the federal judiciary against each other.  Ever since the Supreme Court rendered the federal guidelines as merely advisory in United States v. Booker, the rate of variances from guidelines’ recommendations has increased.  After the Supreme Court in Kimbrough v. United States ruled that a sentencing judge could reject the crack cocaine guideline for a policy dispute with a Commission guideline, the variance rate has risen further still.  While Booker/Kimbrough permits the judiciary some discretionary authority, it is threatening to the Commission and the legitimacy of its guidelines.

The downward variance rate is at its most extreme with a very controversial crime: child pornography offending.  The courts are in disagreement as to whether, as a matter of law, a sentencing judge has the authority to use a Kimbrough-type categorical rejection of the child pornography guideline. Through a comprehensive review of federal sentencing opinions, common policy objections to the child pornography guideline are identified. The guideline is viewed as not representing empirical study, being influenced by Congressional directives, recommending overly severe sentences, and resulting in both unwarranted similarities and unwarranted disparities. The issue has resulted in a circuit split. This article posits a three-way split with four circuit courts of appeal expressly approving a policy rejection to the child pornography guideline, four circuits explicitly repudiating a policy rejection, and three circuits opting for a more neutral position.  A comprehensive review of case law indicates that the circuit split is related to unwarranted disparities in sentencing child pornography offenders nationwide. This assessment was then corroborated by empirical study.

The Sentencing Commission’s dataset of fiscal year 2011 child pornography sentences were analyzed to explore what impacts policy rejections and the circuit split may have on actual sentences issued.  Bivariate measures showed statistically significant correlations among relevant measures.  The average mean sentence in pro-policy rejection circuits, for example, was significantly lower than in anti-policy rejection circuits.  A multivariate logistic regression analysis was employed using downward variances as the dependent variable.  Results showed that that several circuit differences existed after controlling for other relevant factors, and they were relatively consistent with the direction the circuit split might suggest.

The article concludes that the child pornography guideline suffers from a multitude of substantial flaws and deserves no deference.  It also concludes that there are no constitutional impediments to preventing a district judge from categorically rejecting the child pornography guideline.  Booker and its progeny stand for the proposition that there are no mandatory guidelines, even if a guideline is the result of Congressional directive.

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“a very controversial crime: child pornography offending”

MAN ACCUSED OF RAPING CHILD, KILLING WOMAN IN CLAY WAS FACING FEDERAL CHILD PORNOGRAPHY CHARGES

ACCUSED KILLER DAVID RENZ OUTSMARTED ELECTRONIC MONITORING SYSTEM BEFORE POLICE SAY HE RAPED CHILD,
KILLED LIBRARIAN, THURSDAY NIGHT

- Bresnahan was leaving a gymnastics class with a child at about 9 p.m. Thursday at Great Northern Mall.
- The attacker bound Bresnahan and the child, The attacker drove them to Verplank Road in Clay.
- The attacker raped the girl and killed the woman by stabbing.
- David J. Renz, 29, of 6526 Lakeshore Road, Cicero has been charged with murder, rape and kidnapping.
- The child fled from the car. A passerby saw her running on Verplank Road and assisted her.

U.S. Magistrate Andrew Baxter ordered David J. Renz, could be released from custody in January after the U.S. Attorney’s
office withdrew its objection to that provided that conditions were set….The conditions Baxter set for Renz’s
release included that he allow federal probation officers to visit him at any time of day, that he not possess
any deadly weapon, that he stay away from places where children under 18 congregate…
SYRACUSE.COM 3/15/13

Posted by: Adamakis | Mar 16, 2013 12:58:53 PM

▼LORI BRESNAHAN'S SMILE COULD LIGHT UP A ROOM▼
Syracuse, NY March 15, 2013-- Lori A. Bresnahan will be remembered as a kind woman, loving mother and dedicated educator.
"She was very dedicated and awesome with the children," said Melissa Nasiff, a gymnastics coach at CNY Gymnastics Centre
in Great Northern Mall. "She always had a smile on her face. She was a light and it was refreshing."

Bresnahan loved children. She was a librarian in the Liverpool Central School District
and also worked at other districts including the Syracuse City School District.

SYRACUSE.COM 3/15/13

For more information, or to contribute, please contact Blythe Bennett at babennet@syr.edu.

▼NOW ONLY RAPIST-SLAYER RENZ CAN LIGHT UP A ROOM--& WILL FOR THE REST OF HIS NATURAL LIFE; CONGRATULATIONS TO THE ANTI-DP ADVOCATES OF NY, AND MAY ALL REMEMBER TO ARGUE AGAINST ANTI-CHILD-PORNOGRAPHY-RESRICTIONS▼

Posted by: Adamakis | Mar 16, 2013 1:09:22 PM

Adam:

What does a murduring, rapist son-of-a-beach have to do with child porn? Over 97% of those caught with possession or downloading child porn (California DOC Report on Recidivism 2012) as a FIRST-TIME sex offense have not, nor have they ever, considered actually harming real children. Your comparison is like comparing a man who steals a box of Cheerios in a supermarket to that of one who uses a gun to hold up the store, killing the clerk in the process. Both are crimes, but the shoplifter is not put in jail for life or considered for execution like the robber-killer.

That said, it is very interesting that those whom commit sex offenses, just like alcohol abuse, come from all walks of our society. We have to look at why this unique set of circumstances exist, and not just act as if every sex offense should result in the same punishment for all gradations of severity.

Posted by: Eric Knight | Mar 16, 2013 5:52:05 PM

I am not a legal professional or even a (formal) student. I follow sex offender law because a member of my family is on the sex offender registry.
The incidence of persons on the sex offender registry re-offending with a sex crime is very low. It is among the lowest in the criminal justice system. It does exist, however. Fewer than one in twenty registrants will commit another sex crime within 3 years of release, and the further they get from incarceration, the less likely they are to commit another such offense. In fact, about 0.8% of those convicted of child pornography charges will commit a violent sex offense.
As with all those who get out of jail, they do better if they have a stable job, a place to call home, and those who are willing to help them get back on the right path. The public sex offender registry is a piece of legislation that has no empirical backing. It sounds good, but the odds are that if a child is molested, it will be someone known to the child or family, someone NOT on the registry.
Furthermore, since most such offenses ARE committed by a relative or close friend, listing the offender also identifies the victim, causing them to be re-victimized. This is clearly unacceptable. Is it worth it to have a sex offender registry in the public sphere if it costs repeated re-victimization of these children? In my opinion, the answer should be NO!
The case pointed out by previous comments is tragic. It was not and could not have been prevented by the sex offender registry, because the accused (and please recall he has been accused, not convicted) was not on the sex offender registry. He had not as yet gone to trial on the other crime.
In fact, it is possible that the draconian measures which treated that man as already guilty may have pushed him over the edge. In other words, the sex offender registry and the treatment that goes along with it are dangerous to the public at large.

Posted by: Lois Marshall | Mar 16, 2013 7:58:27 PM

Let's talk empiricism for a minute.

4 million child porn web sites. Each showing ever more disgusting and violent degradation of children.

The lawyer traitor is responsible for this catastrophe of crime. Get rid of the lawyer. He is an idiot. The lawyer is a feminist running dog, pursuing the productive male, wasting time.

The lawyer idiot is also the biggest subscriber and subsidizer of organized crime producers of child porn. The idiocy of the lawyer traitor knows no limit.

It boggles the mind that an article about empiricism should overlook that minor fact, the catastrophe of lawyer management of child porn. Of course, there is, as usual, one area of great success for the lawyer idiot. A massive and worthless government program of supervision and filling prison beds with non-dangerous, downloaders.

Posted by: Supremacy Claus | Mar 17, 2013 5:29:40 AM

Lois Marshall said:

"In fact, it is possible that the draconian measures which treated that man as already guilty may have pushed him over the edge. In other words, the sex offender registry and the treatment that goes along with it are dangerous to the public at large."

That an obviously wonderful woman was murdered and an innocent child raped and tortured is a tragedy beyond comprehension. My gut reaction is that if this person is guilty, I want to see him fry. However Lois said something that struck a nerve with me.

What would be the DIFFERENCE in sentencing in NY for possession of child pornography and murder, rape and child torture. Did this twisted individual sickeningly decide that if I am going to serve 20+ years in the Federal Pen at the age of 29 no matter what I do, I will be be a ruined old man when I get out and with the SO restrictions, even then life will not be worth living. I might as well do something to deserve this sentence which will end my life as I know it and even qualify for the death penalty to end it.

Is there a law of diminishing returns with respect to sentencing when obviously the crimes are so disimilar, but the sentences and subsequent fallout may not be?

Just asking.

Posted by: albeed | Mar 17, 2013 4:10:10 PM

Lois--->-->-> Follow your own reasoning, replete with excuses for the rapist:

Firstly :: "The incidence of persons on the sex offender registry re-offending with a sex crime is very low."
▼Fact: THIS child-pornography possessor raped a girl and murdered her mother.

2ndly :: "most such offenses ARE committed by a relative or close friend"
▼Fact: THIS kidnapping/rape/murder WAS committed by a stranger.

Finally :: "draconian measures which treated that man as already guilty may have pushed him over the edge"
▼Fact: Funny how you can *fantastically speculate* herewith,
but not manage to acknowledge that "DRACONIAN" incarceration
would have *EFFECTIVELY* kept this crime from occurring.
_____
Lois, your stats may be mythical, but your support for the scumbags is thoroughgoing and real.
Would that you reverse your posture.

Posted by: Adamakis | Mar 18, 2013 9:43:22 AM

" What does a murduring, rapist son-of-a-beach
[who was FACING FEDERAL CHILD PORNOGRAPHY CHARGES]
have to do with child porn?"~~Eric Knight

Figure it out, balach.

Posted by: Adamakis | Mar 18, 2013 9:49:44 AM

well no offense Adamakis but this ends it all!

"THIS child-pornography possessor raped a girl and murdered her mother."

Last time i looked MURDER has been a crime since the beginning of time. KILL him and move on.

the illegal sex offender registry has no part in the discussion.

Posted by: rodsmith | Mar 18, 2013 3:09:06 PM

"Figure it out, balach."

Figure WHAT out? Given, his being investigated for child porn may have had something to do with his mental state, but thousands of other child porn suspects do NOT commit murder. It certainly has nothing to do with community safety in general. Using my previous shoplifting/murder example, it's as if you can prove a strong, binding nexus between said shoplifting and murder (perhaps because of the suspected shoplifter's "mental state about his arrest").

This boy says, "focus."

Posted by: Eric Knight | Mar 19, 2013 7:42:17 PM

"tied up both victims, raped the young girl"

Renz consumed child pornography which typically depicts rapes of children, then restrained a mother, in order to rape her child.

Not influential, not connected, you're right Eric.

Posted by: Adamakis | Mar 20, 2013 12:21:52 PM

Enough Already!!!!
Everyone needs to STOP assuming that someone convicted of looking at child porn actually "wanted" to look at child porn.
How many knuckleheads are going to websites like Limewire to look at Adult Porn and then end up with Child Porn on their computer because of someone else's share-file! These poor jerks end up going to prison, their lives and their families lives are destroyed. Even once out of prison, what kind of life will they have if they have to register as a sex offender. All this because they were computer iliterate?
Not everyone charged with child porn is a pedophile, most of the guys in the above situation would never, ever, think of doing anything with a kid. You can't compare them to someone who collected kiddie porn and then went out and raped and murdered.
Stop comparing bad apples to misguided oranges.

Posted by: kat | Mar 20, 2013 1:42:01 PM

kat:

You are making to much sense, much more sense than Congress and the DOJ. That is why there are different levels of punishment for receipt and possession. It makes persecutions, er, I mean prosecutions easier. That is why mostly AUSDAs wrote the law.

That is also why they have Age of Consent Laws for those 14-17, even though their hormones are acting up and treat them as if they are 5-12. They can't give consent like adults but can be prosecuted like adults for crimes. Only the DA gets to decide if they are adults. Again, to make prosecutions fool-proof, we don't have to establish who intended what as it is irrelevant. Only age matters.

Anyone who intentionally has real-harcore CP, pre-pubescent children being abused should be punished. I don't mean bathtub pictures of new-borns, although there are sick minds who think that should also be punished.

Sometimes the cure is worse than the disease.

Posted by: albeed | Mar 20, 2013 5:44:42 PM

albeed,
Thank you, what I said does make sense.
If I could personally address Congress when they discuss the US Sentencing Commission recommended guideline changes, then maybe they would understand that there are "victims" on both sides of the issue.

Posted by: kat | Mar 21, 2013 9:16:06 AM

i'm with you and albeed kat! Unfortunately our govt is so far into denial and the twilight zone i'm pretty sure nothing but the applicaiton of large amounts of violence to thier persons will ever fix them.

Posted by: rodsmith | Mar 21, 2013 11:38:22 AM

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